Ready to declare that we never shared data with anybody: WhatsApp to SC

WhatsApp offered to make a sworn declaration in the Supreme Court that it had never shared user data with third parties, as the messaging app tried to stave off claims that its 2016 privacy policy allowed the company to do so. The top court said it could still look into the matter since it involved a huge number of Indians who use the app.

“We cannot leave 160 million subscribers trapped in a corridor of charity,” said Justice Dipak Misra, heading a five-judge bench which is hearing a batch of petitions challenging WhatsApp’s privacy policy post its acquisition by Facebook.

Misra hinted that the bench could examine, after the court’s summer recess, whether the company’s privacy policy was against public policy in India and whether it needed to be subjected to constitutional controls — provided the court was convinced that there was a case for the judiciary to look into.

Opening the arguments for WhatsApp, senior counsel KK Venugopal said its services were subject to regulatory control. Venugopal, who is the Facebook counsel, appeared for WhatsApp as Kapil Sibal, who represents the messaging platform, was busy in another case involving the legality of triple talaq.

“We can file an affidavit stating that not a single piece of information has been shared with anybody,” Venugopal said. “Even I cannot access the information if I want to. There is no element of human intervention in the process. Machines take care of this.”

Venugopal said also no public interest litigation or petition claiming violation of fundamental rights could be filed against WhatsApp as it was not a public body discharging public functions.

Those challenging WhatsApp’s privacy policy would first have to approach the regulatory authorities before they can file a civil suit in a court, he argued. This is strictly a contractual matter between private parties, he contended.

He also claimed that the regulations of 2009 and 2011 framed under the Information Technology Act governed WhatsApp. “Every single aspect is covered by these rules,” he said, including penal and compensatory provisions which deal with unauthorised sharing of information.

Sensitive personal information can only be shared with consent of a user, he argued. He also claimed that WhatsApp was an “intermediary” under the IT Act and was not liable for any data carried over the application.

WhatsApp only accesses non-sensitive information, such as contact details and status and profile photo, he said.

Critics say the changed privacy policy of WahtsApp allows it to share personal information of users with parent Facebook, allowing the social networking platform to commercially benefit from it.

“This is economic espionage in the name of free service,” lawyer for the petitioners Madhvi Divan argued. “Look at their business model. They have acquired WhatsApp for a whopping $19 billion.”

The company uses public resources such as spectrum and performed a public function, she said, to claim that the courts could direct it to respect the Indian citizen’s right to communicate freely. She accused WhatsApp also of following double standards in India and elsewhere.

If there is no data sharing, how has WhatsApp agreed in Italy and the EU not to transfer such data, she demanded to know. With Facebook conceding that they were abiding by such an interim order passed by the competition authority in Italy, the bench wondered why it should not pass an interim order against the company for now, but later desisted from doing so.

“We are the regulator. You must maintain a world standard,” Justice Misra said, but added that he would rather decide the issue once and for all than pass interim orders.